Hey, That's My Stuff: Search and Seizure in Commercial Motor Vehicles

By Chris Turner, Judicial Outreach, Commercial Vehicle Safety Alliance

Before we begin, my disclaimer: This article is meant to be general, providing an overview of the landscape of a driver’s rights and an inspector’s authority to search a commercial motor vehicle (CMV). This article and its examples do not delve deeply into what can be intensive caselaw and doctrine. Drivers should adhere to company policies and always follow an officer’s directives roadside – the courtroom is the place for disagreement. Officers/inspectors should, in turn, follow agency policies and procedures in addition to state law or caselaw for their jurisdiction.

Throughout my 25+ years working in the CMV inspection and legal arena, I’ve heard professional drivers say they don’t have rights when they are in their CMV. Drivers have asked me how an inspector can look in the sleeper or in the back of their trailer without a warrant during an inspection. I’ve also heard officers say they did not need probable cause or a warrant to search a CMV, claiming they had carte blanche to search just because it was a CMV. Two things can be true at once: CMV drivers absolutely have rights, and law enforcement may not need to meet the same standards to stop or inspect a CMV as they would to search a passenger vehicle.

As we will explore in this article, stopping any motor vehicle is a seizure, and looking inside the motor vehicle and its contents or the trunk, sleeper berth or trailer is a search. Well-established caselaw from the Supreme Court and circuit courts govern the “rules” for search and seizure-related terms you’ve likely heard many times before, including “reasonable suspicion” and “probable cause.”

Yet, law enforcement routinely enters the CMV, sleeper berth or trailer without either reasonable suspicion or probable cause, which can be challenging to comprehend. This article will explore the general legal standards of search and seizure and how these standards are altered when a CMV is stopped and inspected by a CVSA-certified inspector. There may be other types of inspections (e.g., border inspections, enforcement of size and weight, or inspections of livestock), which are not the topic of this article. Here, we will only discuss search and seizure as they relate to CVSAcertified inspectors and non-CVSA-certified law enforcement officers. Before we examine search and seizure involving a CMV, we need to consider what constitutes a search or seizure of a non-commercial vehicle.

The starting point for any analysis of search and seizure is the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1

The Fourth Amendment does not protect individuals from all searches or seizures, only those that are unreasonable.2 This includes traffic stops.3 The Supreme Court has held that a “traffic stop constitutes limited seizure within the meaning of Fourth Amendment, and so must be justified by probable cause or, at least, reasonable suspicion of unlawful conduct, based on specific and articulable facts.”4 Reasonable suspicion and probable cause are elusive concepts because there are no bright lines – no rules for when an officer has attained either. Yet, reasonable suspicion or probable cause are required for almost every traffic stop. Let’s explore each concept to better understand what they are and how they apply to traffic stops.

Reasonable suspicion is an abstract concept that cannot be reduced to “a neat set of

legal rules.”5 Rather than a set of rules, the Supreme Court has provided a “totality of the circumstances” approach.6 This “allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available.”7 When courts make a reasonable suspicion determination, they look at the totality of the circumstances to “see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.”8

“The prohibition against unreasonable searches and seizures is satisfied if the detaining officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot.”9

Probable cause is something more than reasonable suspicion. As an example, in Carroll v. United States, George Carroll and John Kiro were convicted for transporting intoxicating spirits in an automobile in violation of the National Prohibition Act.10 In this case, the Supreme Court held probable cause was met “if the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.”11 Carroll also established what is generally known as the “automobile exception.” The Supreme Court has also held that motor vehicles are inherently mobile and may quickly move out of the jurisdiction or destroy evidence12; therefore, searching a motor vehicle without a warrant requires probable cause. Taking what is commonly referred to today as the Carroll Doctrine further, in the case of Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that “regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation.”

To summarize the concepts we’ve reviewed so far, officers need only reasonable suspicion when stopping non-commercial motor vehicles – although they may have probable cause. Reasonable suspicion is met where the officer has a “particularized and objective basis for suspecting legal wrongdoing” through the cumulative information available. An officer establishes probable cause if a “man of prudence and caution”13 would believe an offense has been committed.

Let’s use a common occurrence to illustrate the rules we’ve established for stopping a vehicle and subsequently searching that vehicle.

Late on a Friday night, near a bar district, a vehicle is traveling much slower than the posted speed limit and surrounding traffic. The driver is weaving the vehicle back and forth quickly and erratically across the lane with other traffic present but does not quite move out of the lane.

In our example, there is no traffic violation; however, given the articulable facts above, an officer trained to detect impaired drivers may reasonably believe the driver is impaired and stop the vehicle. Taking our example further:

The officer stops the vehicle and talks to the driver. While speaking with the driver, the officer sees a plastic baggie with a white crystal-like substance in the cup holder. Due to the officer’s training and experience, the officer recognizes the substance as methamphetamine.

The officer would have probable cause a crime was being committed and cause to search the driver, the vehicle and its contents for any other methamphetamine. Now that we have reviewed the requirements for reasonable suspicion and probable cause, which an officer must have when stopping and searching a non-CMV, we will examine how these rules are significantly altered when a CMV is stopped (seized) and inspected (searched) by a CVSA-certified inspector versus a non-CVSA certified officer.

The Supreme Court and all circuit courts have established caselaw whereby CMVs are subject to a reduced expectation of privacy due to their regulatory nature and the pervasiveness of federal and state regulations governing their operation.14 However, despite the diminished expectation of privacy, the Fourth Amendment still protects CMV operators from unreasonable searches, and these searches must be within the state’s statutory inspection program.15 We will first look at the diminished expectation of privacy and the test to determine if a search was reasonable and then turn to two states (Kansas and Florida) as examples.

The 10th Circuit held, in examining Kansas’ CMV regulations, that “a regulatory inspection is not premised on an officer’s on-the-spot perception that he has an individualized suspicion that the specific individual to be seized and searched is involved in criminal activity.”16 Rather, “an administrative search is instead premised on the individual subject to the warrantless seizure and search knowingly and voluntarily engaging in a pervasively regulated business, and on the existence of a statutory scheme that puts that individual on notice that he will be subject to warrantless administrative seizures and searches.”17 Similarly, in 2008, the 11th Circuit (precedent for Florida) held “an administrative inspection of a closely regulated business is a well-established exception to the warrant requirement for a search.”18

Courts determine whether a warrantless inspection in a pervasively19 regulated business is reasonable using a three-part test:

First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, warrantless inspections must be necessary to further the regulatory scheme. Finally, the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.20

The first two parts of the test are satisfied by the Federal Motor Carrier Safety Administration’s (FMCSA) establishment of regulations for CMVs in commerce. The regulations are intended to decrease crashes and save lives, and inspections are necessary to ensure compliance with the regulations. States adopt by reference or have enacted substantially similar laws/regulations as required by FMCSA. To determine compliance with the final part of the test, we must look to state statutes in conjunction with the federal definition of a certified inspector and their authority.

The Kansas statute:

(b) The superintendent and members of the Kansas highway patrol are hereby authorized and directed to execute and enforce the laws of this state relating to public and private motor carriers of passengers or property, including any rules and regulations relating to such laws, and shall have the power and authority to require the driver of any motor vehicle owned or operated by any such carrier to stop and submit such vehicle to an inspection to determine compliance with such laws and rules and regulations.21

The Kansas Administrative Regulations adopt the federal regulations by reference and require a state or local government inspector to meet the requirements of CVSA Operational Policy 4: Inspector Training and Certification22, and the inspector may only conduct an inspection at the level they are certified to conduct. (Scope and discretion as required by the test).23 Florida, as another example, takes a slightly different legal path, resulting in the same framework by adopting the inspection procedures in the statute.24 Florida, like Kansas, requires CMVs in commerce to submit to an inspection to determine compliance with the regulations, and inspectors must be CVSA certified.25

If an officer is not certified to CVSA Operational Policy 4, randomly stopping the CMV for the inspection as well as the subsequent inspection would not meet the court’s test for a warrantless search and seizure. Thus, officers who are not CVSA certified must have reasonable suspicion or probable cause to stop a CMV, just like they would any other vehicle. To search the CMV, the non-CVSA certified officer would need probable cause, a warrant or other legal exception.

Let’s use another common example to illustrate the rules for a CMV stopped by a CVSA-certified inspector:

An inspector observes a CMV traveling on the roadway. The inspector initiates a traffic stop to complete an inspection. The inspector is certified to complete a CVSA Level I Inspection. The inspector enters the sleeper berth to ensure compliance with the sleeper berth regulations.26 The CMV is carrying hazardous materials and the inspector opens the trailer to ensure compliance with the hazardous materials regulations.

In this example, the inspector stopped the CMV without reasonable suspicion or probable cause, entered the sleeper berth and opened the trailer without a warrant. The CVSAcertified inspector did so to complete the inspection, which was necessary to further the regulatory scheme. The inspector’s actions are legal and satisfy the Fourth Amendment. Had the inspector found anything illegal, the evidence would be admissible because it was discovered during the inspection. If, in our same example, the inspector was only certified to complete a CVSA Level III (driver only) Inspection, the inspector would not have been legally privileged to check for compliance with the sleeper berth requirements or to open the back of the trailer during the inspection to ensure compliance with the hazardous materials regulations.

In conclusion, stopping any vehicle is a seizure. Law enforcement officers need at least reasonable suspicion to stop any vehicle. To search a vehicle, law enforcement officers must have probable cause, a warrant or other legal exception so as not to infringe on the Fourth Amendment. When determining reasonable suspicion or probable cause, the courts look at the totality of the circumstance; each stop and search is fact-specific. However, the normal legal requirements for search and seizure are significantly altered when a highly regulated industry is involved.

Commercial motor vehicles are a pervasively regulated industry, and courts utilize a threepronged test to determine if a stop and inspection are legal. The first two prongs are satisfied by the regulations promogulated by FMCSA and adopted or enacted by the states. That is, the regulations are necessary to reduce crashes and avoid injury and death on U.S. highways. Inspections are necessary to ensure drivers and carriers are complying with the regulations. The final prong of the test is satisfied by state laws. Those laws give notice to carriers and drivers who are stopped and inspected by a CVSA-certified inspector, and the inspection will be no more intrusive than the inspector is certified to complete. This means the inspector may conduct a driver or vehicle inspection, only at the level for which the inspector is certified.

Ultimately, CMV drivers continue to have Fourth Amendment Constitutional rights, and the inspector, while legally privileged to stop and inspect the CMV, does not have carte blanche.

REFERENCES

1U.S. Const. amend. IV.

2Carroll v. United States, 267 U.S. 132, 147, 45 S. Ct. 280, 283, 69 L. Ed. 543 (1925).

3Id.

4United States v. Whren, 53 F.3d 371 (D.C. Cir. 1995), aff’d, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

5Id.

6United States v. Arvizu, 534 U.S. 266, 268, 122 S. Ct. 744, 747 (2002).

7Id. at 747.

8Id.

9Id.

10Id. at 281.

11Carroll, 267 U.S. 132 at 161.

12See generally Carroll, 267 U.S. 132; Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996). (If car is readily mobile and probable cause exists to believe it contains contraband, Fourth Amendment permits police to search vehicle without more).

13Carroll, 267 U.S. 132 at 161.

14United States v. Herrera, 444 F.3d 1238 at 1244 (10th Cir.2006), quoting New York v. Burger, 482 U.S. 691, 702-03(1987).

15Id.

16Id.

17Id.

18United States v. Steed, 548 F.3d 961, 963 (11th Cir. 2008).

19Different terms are used in court rulings they include pervasively, heavily, or closely regulated businesses.

20Herrera, 444 F.3d 1238 at 1244.

21Kan. Stat. Ann. § 74-2108 (West).

22 Kan. Admin. Regs. 82-4-3d (adopting 49 C.F.R. § 385.207).

2349 C.F.R. § 385.207.

24Fla. Stat. Ann. § 316.302 (West)

25Id.a

26See 49 C.F.R. § 393.76.